On Friday, the FCC issued its first EEO audit of almost 300 radio and TV stations across the country (see the model audit letter and list of stations affected here), the day after announcing its intent to abolish the Form 397 EEO Mid-Term Report (see our articles here and here). In the Order announcing the forthcoming abolition of the Mid-Term Report, the FCC also noted its intent to being a proceeding in the next 90 days to reexamine the effectiveness of its EEO program – signaling that EEO remains a priority of the FCC and that this audit should be taken very seriously. While the FCC each year promises to audit 5% of all full-power broadcast stations, and this audit is likely but the first of a number of EEO audits for the coming year, this upcoming review of the effectiveness of the FCC’s EEO process highlights the continued importance of EEO enforcement to the FCC.
The response to the audit must be completed by April 1. As the response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC, but also by anyone else anywhere, at any time, as long as they have an internet connection. The upcoming license renewal cycle adds to the importance of this audit, as a broadcaster does not want a recent compliance issue to headline the record the FCC will be reviewing with its license renewal (see our article here about the upcoming license renewal cycle). The audit requires that the broadcaster submit their last two EEO Public File Reports (which should already be in the online public file) and backing data to support all of the outreach efforts listed on those public file reports. Broadcasters subject to the audit should carefully review the audit letter to see the details of the filing.
If any station in your cluster is on the list of audited stations, all stations in that “station employment unit” (a group of commonly owned stations serving the same area with at least one common employee) must respond. If that cluster has 5 or more full-time employees, it must observe the FCC’s EEO requirements and respond to this audit. If a station that is being audited is involved in an LMA with another broadcaster, the audit may require that the broker provide employment information as well as the licensee. There are some exceptions where stations can be excused from the audit for stations audited in the recent past.
As noted above, these audits may take on added significance given the FCC’s statement in the final version of the Order abolishing the Mid-Term Report that it will issue a Further Notice in the next 90 days seeking comment on the FCC’s track record of EEO enforcement and asking for proposals on how EEO enforcement can be made more effective. The Order notes that this decision was prompted by comments in the Form 397 proceeding suggesting reform of the audit process. The Order also noted the step already taken by the FCC to strengthen EEO enforcement by transferring the EEO Branch from the Media Bureau to the Enforcement Bureau (see our article here on that transfer). This language about the upcoming review of the Commission’s EEO performance was not in the initial draft order released in January in anticipation of the consideration of the abolition of the Form 397. It appears to have been added at the request of the two Democratic commissioners, according to their statements on the Mid-Term report order.
With this renewed emphasis on EEO enforcement and the audit process, any broadcaster on the audit list needs to take special care in responding to the audit letter. Even though the FCC has allowed online recruiting to be the sole method in which a station recruits new employees (see our article here), if a station does not keep the required paperwork and submit it in response to the audit, the station can still be fined by the FCC (see the article here about recent EEO fines). So check the audit list twice to see if your station is on it, and if it is, take time and answer carefully.